Widespread Outrage Over Suggestion That Children Represent Self in Immigration Court

Count me in as another voice within the chorus of shocked responses to senior immigration court judge Jack. H. Weil, who said during a deposition that three- and four-year olds can learn immigration law well enough to represent themselves in court.

This wasn’t just a casual comment; Judge Weil was addressing the issue of whether children facing deportation are entitled to attorneys at taxpayer expense. And let’s not forget that he trains other immigration judges nationwide, many of whom are hearing cases of immigrant children by the thousands.

Here are Weil’s words, as reported by the Washington Post: “I’ve taught immigration law literally to 3-year-olds and 4-year-olds . . . You can do a fair hearing. It’s going to take you a lot of time.”

Darn right it’s going to take a lot of time. More time than immigration judges have these days, from all I’ve heard about their backlogged and overcrowded court dockets. And that’s not all it’s going to take.

How does one even begin to explain the reasons? Plenty of people have expressed doubt over Weil’s assertions, from experts like Laurence Steinberg, psychology professor at Temple University, who told the Washington Post, “I nearly fell off my chair when I read that deposition” to Harry Shearer, as part of his political commentary on the March 6 version of “Le Show.” (Even my mother called me after reading the headlines!)

The first thing to bear in mind is that the United States has, under international and national law, an obligation to treat refugees differently (i.e. better) than other immigrants. And make no mistake, these children are mostly refugees, or people afraid to return to their home countries due to past persecution or the possibility of future persecution.

According to an American Immigration Council Report by Elizabeth Kennedy, NO CHILDHOOD HERE: Why central american children are fleeing their homes, non-economic factors such as organized crime, gang threats, and violence appear to be the strongest determinants for children’s decision to emigrate. Many try moving within their home countries first, and flee to the United States only as a last resort. They’re afraid.

A video prepared for the Center for American Progress by Tom Jawetz, Philip E. Wolgin, Andrew Satter, and Kulsum Ebrahim called “Why We Must Protect Central American Mothers and Children Fleeing Violence” points out that, as potential refugees, the Central American migrant children and families are legally entitled to due process. Yet they are receiving the very opposite: in many cases, a quick trip out the door.

The next key point is that asylum law is not only complicated, but fact-based and ever-evolving. I’ve represented many applicants in court whose cases seemed marginal at first. It was only after spending hours (often over the course of many meetings) that I was able to understand the true basis of their fear of returning home and then analyze whether that fit into a ground for U.S. asylum.

Sometimes the answer was no. A child who, for example, is simply afraid of random street violence, is going to have trouble proving that he or she would be singled out for persecution. (See Asylum or Refugee Status: Who Is Eligible?)

But what if that child is a boy who is particularly effeminate, and who is commonly picked on by anti-gay gangs who are beyond the government’s control? That could be a ground of asylum. But do we really expect a small child to understand that distinction? Or to admit, in front of a judge and an attorney for the U.S. government, that people make fun of him for possibly being gay?

I doubt it. And that’s just one of many possible fact patterns. Every case is unique, just as every child is unique, and deserves to be heard individually rather than pushed through an overloaded system.